2019 (5) TMI 1721 - HC - GST

Validity of conditions imposed at Sl. Nos.12 and 13 of the Circular dated 02.01.2018 - violation of condition flowing from the notification dated 29.12.2017 - complaint of the appellant-writ petitioner is that the Assessing Authority has chosen not to rely on the notification issued by the State of Uttarakhand dated 29.12.2017; and is instead relying on the directions issued by the Commissioner in the Circular dated 02.01.2018 - HELD THAT - It is only if the show-cause notice is without jurisdiction or if the authority issuing the show-cause notice has already made up his mind and has determined the issue or where facts are admitted or are not in dispute would the High Court be justified in entertaining the Writ Petition. The Commissioner issued Circular dated 02.01.2018 informing all Joint Commissioners in the State that Entry-3(A) Schedule III to the Uttarakhand VAT Act was amended by notification dated 29.12.2017; it provided for payment of tax @5% on the sale of diesel oil and natural gas to a dealer registered under the Uttarkhand GST Act and against such certificate and procedure to be prescribed by the Commissioner. The Circular thereafter details the procedure of upkeep and use of Form-D. Para 12 of the said circular stipulates that such manufacturing units which are using diesel oil as fuel in manufacturing shall submit before the tax assessing officer details of consumption of diesel as fuel in manufacturing during previous year 2016-17 at the first time for authentication of Form-D and a certificate declaring the capacity of the generator used in manufacturing; and in case of any change in the relevant capacity of the generator then details of such change shall be intimated within three working days from such change to the respective tax assessing officer. Para 13 requires manufacturing units to maintain a log-book pertaining to the generator and to keep details of the stock of diesel oil. Para 15 stipulates that if it is found that Form-D issued to any manufacturing unit is misused then the facilities provided under notification dated 29.12.2017 would not been allowed to that unit. Questions whether use of diesel oil in the transportation of goods by a dealer from one of his units to another would fall within the ambit of the words for use in the process of manufacture of taxable goods referred to in the notification dated 29.12.2017; or whether these words used in the notification are confined only to its use in the actual manufacture of goods are again matters for the Assessing Authority to examine. It would be wholly inappropriate for this Court even before the matter is considered by the Assessing Authority in the first instance to adjudicate these issues in writ proceedings under Article 226 of the Constitution of India. Suffice it to observe that since the circular dated 02.01.2018 does not explicitly exclude use of diesel oil for other purposes from the ambit of the notification dated 29.12.2017 the submission that the Commissioner has already held that the notification should be confined only to the actual manufacture and no useful purpose would therefore be served in approaching the Assessing Authority does not merit acceptance. The learned Single Judge has relegated the assessee to file its reply to the show-cause notice issued by the Deputy Commissioner. In an intra-court appeal the jurisdiction which the Appellate Court exercises is extremely limited. As the learned Single Judge is not a court subordinate interference by a Division Bench in an intra-court appeal would be justified only if the order under appeal suffers from a patent illegality. The order passed by the learned Single Judge in our opinion does not suffer from any such infirmity warranting interference in an intra-court appeal - Appeal dismissed.

Issues Involved:
1. Jurisdiction of the Court to entertain the writ petition against a show-cause notice.
2. Validity of the Circular dated 02.01.2018 issued by the Commissioner in light of the notification dated 29.12.2017.
3. Whether the Assessing Authority had pre-determined the issue.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Court to entertain the writ petition against a show-cause notice:

The Court emphasized that the scope of interference under Article 226 of the Constitution against a show-cause notice is extremely limited. The principle established in various judgments, including *Sushil & Company* and *Siemens Ltd.*, is that a writ petition can be entertained only in exceptional circumstances, such as when the show-cause notice is ex facie without jurisdiction or when the authority has already made up its mind. The Court reiterated that a show-cause notice is intended to provide an opportunity for the recipient to present their case, and interference by the Court at this stage would generally be premature unless the notice is a nullity or issued without jurisdiction.

2. Validity of the Circular dated 02.01.2018 issued by the Commissioner in light of the notification dated 29.12.2017:

The appellant-writ petitioner argued that the Circular dated 02.01.2018 issued by the Commissioner restricted the scope of the notification dated 29.12.2017, which provided a concessional tax rate for diesel used in the manufacturing process. The petitioner contended that the Circular limited the benefit to diesel used in generators for manufacturing, whereas the notification did not impose such a restriction. The Court examined the relevant statutory provisions, including Section 4(4) of the Uttarakhand Value Added Tax Act, 2005, which empowers the State Government to issue notifications, and Rule 4 of the Uttarakhand VAT Rules, 2005, which grants the Commissioner the authority to issue orders and directions. The Court noted that Para 12 of the Circular did not explicitly prohibit the concessional rate for other purposes and left the matter for the Assessing Authority to examine.

3. Whether the Assessing Authority had pre-determined the issue:

The appellant-writ petitioner contended that the Assessing Authority had already made up his mind, as evident from the show-cause notice, and no useful purpose would be served in submitting a reply. The Court observed that the show-cause notice merely indicated a tentative opinion and provided an opportunity for the petitioner to show cause and satisfy the Deputy Commissioner that their use of diesel oil fell within the ambit of the notification dated 29.12.2017. The Court found no merit in the argument that the Assessing Authority had pre-determined the issue.

Conclusion:

The Court upheld the learned Single Judge's decision to dismiss the writ petition and directed the appellant-writ petitioner to file a reply to the show-cause notice. The Court modified the order to allow the petitioner additional time to submit their reply. The appeal was dismissed, and the petitioner was advised to avail judicial remedies after the Deputy Commissioner passed an order.

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